Wednesday, June 22, 2016

Does a lawyer become liable to pay costs personally because he starts an action that has little chance of success? Maybe

Yesterday's decision in Best v. Ranking, 2016 ONCA 492 suggests counsel is not liable for costs for pursuing a weak action. But the court goes on to say the weakness of a case "is not unfamiliar in this context". What that means is rather unclear but it suggests counsel is at risk of pursuing a weak action. Some might say the facts in the case were extreme but suggest counsel ought to exercise special caution in acting:

[50]I agree with the submission of the appellant that the fact that a lawyer starts an action which is unlikely to succeed is not, on its own, a basis to award costs personally against that lawyer.

[51]Rule 57.07 is "designed to protect and compensate a party who has been subjected to costs being incurred without reasonable cause, not to punish a lawyer": Galganov, at para. 14.

[52]The motion judge here did not make Mr. Slansky liable for costs personally simply because he started a case that was weak. As the motion judge pointed out, the nature of the proceedings is an important contextual factor in assessing whether costs wasted by a solicitor justify an order that he pay costs personally.

[53]As this court held in Galganov, at para. 20:

[R]ule 57.07(1) requires an examination of "the entire course of litigation that went on before the application judge so that the application judge can put in proper context the specific actions and conduct of counsel." This holistic examination of the lawyer's conduct produces an accurate tempered assessment. [Citation omitted.]

[54]The motion judge examined the entire course of the litigation in assessing the specific actions and conduct of counsel, as she was required to do. In particular, she focused on the vexatious or abusive nature of the proceeding. This is not a necessary element of an award of costs against counsel personally but is not unfamiliar in this context. (See e.g. Soderstrom v. Hoffman-LaRoche Limited(2008), 58 C.P.C. (6th) 160 (Ont. S.C.J.); Donmor Industries Ltd. v. Kremlin Canada Inc. (No. 2) (1992), 6 O.R. (3d) 506 (Gen. Div.); and Baryluk (Wyrd Sisters) v. Campbell (2009), 81 C.P.C. (6th) 172 (Ont. S.C.J.).)

1 comment:

Anonymous
said...

James Morton will take anyone's money anytime he can with no intention of ever succeeding at anything except stealing from his client. Ask him why he went from Senior Partner at Steinberg Hope and Israel, to being tossed, and now he's an ambulance chaser, and legal aid worm for Nunavut clients. A true bottom feeder and pathetic liar.